Can an Oregon lawyer who represents a trade association take on one member against another member in an unrelated matter?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer retained by a trade association is asked, while that representation continues, to represent one member of the association against another member in a matter unrelated to the lawyer's work for the association. The member to be opposed is not and has not been an individual client of the lawyer. The opinion asks whether the lawyer may take that representation.
The opinion concludes yes. It applies Oregon RPC 1.13, under which a lawyer retained by an organization represents the organization acting through its authorized constituents, not the individual members. Because the lawyer's client is the association, and the member to be opposed is not and never has been the lawyer's client, the opinion finds no current conflict under RPC 1.7.
The opinion notes that the "entity theory" does not apply to closely held entities controlled by a single person or family, but that exception is not present here, and there is no indication the lawyer led the individual members to believe they were the lawyer's clients. It concludes there is no significant risk that representing the one member will materially limit the lawyer's responsibilities to the association, so the lawyer may proceed.
In practice
The opinion holds that identifying the client is the threshold question: under RPC 1.13 the association is the client, and the individual members are not. Per the opinion, because the opposed member was never the lawyer's client and the association's interests are not materially implicated, RPC 1.7 does not bar the unrelated adverse representation.
Common questions
Q: Who is the lawyer's client when a lawyer represents a trade association?
A: The association. The opinion concludes that under RPC 1.13 the lawyer represents the organization acting through its constituents, not the individual members.
Q: Can that lawyer take one association member against another?
A: Yes, on these facts. The opinion concludes that because the opposed member is not and has not been the lawyer's client and the matter is unrelated, there is no current conflict under RPC 1.7.
Q: When might the answer be different?
A: The opinion notes the "entity theory" does not apply to closely held entities controlled by a single person or family, and the analysis would change if the lawyer had led members to believe they were the lawyer's clients.
Background and rules framework
The opinion interprets Oregon RPC 1.13 (organization as client; the lawyer represents the entity through its constituents) and RPC 1.7 (current-client conflicts, including direct adversity and material-limitation conflicts). These track Model Rules 1.13 and 1.7.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.13 / Model Rule 1.13 (organization as client)
- Oregon RPC 1.7 / Model Rule 1.7 (conflicts of interest; current clients)
Cases:
- In re Kinsey, 294 Or 544, 660 P2d 660 (1983)
- In re Mettler, 305 Or 12, 748 P2d 1010 (1988)
- In re Banks, 283 Or 459, 584 P2d 284 (1978)
See also
- OSB Ethics Op. 2005-11: Former-Client Matter-Specific Conflicts
- OSB Ethics Op. 2005-22: Third-Party Payment of Fees
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-27.pdf
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